McArthur v. . Morris

Smith, C. J., after stating the case. If the terms of the covenant were that there were but eighty acres taken from the area of the Rucker tract, with its defined boundary lines, by the pryor deed to Lynch, it would be broken and the defendant would be liable in damages commensurate with the value of the ninety acres lost beyond the number specified, and the ruling of the court would be correct. But if its meaning be, and such we think is a fair construction of the words, to exempt from the operation of the plaintiffs’ deed all the land embraced in the deed to Lynch, and the supposed area is mentioned as descriptive only, then' the reserved land without regard to quantity would be included in the plaintiffs’, and consequently the covenant would at *407 tach to no part of it. The defendant covenants as to the title to the-land -described and which his deed purports to •convey, but not to that which is reserved out of the general description of-the boundary lines. A superior outstanding title to the reserved part cannot be a breach of the obligation entered into in regard to that whieh the grantor desig-. nates, and undertakes to convey. “ Whenever it appears,” remarks Chancellor KENT, “ by the definite boundaries, or bywords of qualification, as‘more or less,’-or as‘containing by estimation,’ or the like, that the statement of the quantity-of acres in the deed is mere matter of description- and not of the essence of the contract, the buyer takes the risk of quantity, if there be no intermixture of fraud in the case.” 4 Kent Com., 466. See also Noble v. Goggins, 99 Mass., 235, where the authorities are reviewed and a similar ■conclusion reached. Rawls Cov. Title, 358. The statement as to the supposed quantity passing under the Lynch deed, followed by the words, “more or less,” shows that it was but a conjectural estimate resting on memory only, and the purpose was to exclude all which that deed embraced, so that if the area was less, the plaintiffs would get the benefit of the enlargement, and if more, they must sustain the loss arising from the reduction. If there was fraud practiced, the plaintiffs are not without remedy in a different action, but in our opinion they cannot recover for the deficiency in the Rucker tract upon the defendant’s covenant. There is error, and judgment will be entered for the plaintiffs for fifty dollars, the damages .as to the Dickey tract, and interest. Error. Judgment accordingly.